MARYAMMAL Vs. KALIYAMMAL

JUDGEMENT

(1.) IN this case the lower court does not seem to have correctly appreciated the nature of the question arising for decision. The whole case has been disposed of on the first issue "whether the opinion of this Court (the District Court of Salem) in O.P. No. 6 of 1905 in the matter of the construction of the three wills of Raja Gounden is res judicata so as to bar the plaintiff from asking the court to place a different construction thereon." O.P. No. 6 was an application by the first defendant herein for probate of the three wills of Raja Gounden dated the 16th of April, the nth September, and the 19th December, 1902. The plaintiff in the present case while admitting the genuineness of all the three wills contended that the two earlier wills were revoked by the will dated the 19th December 1902. The District Court held that the earlier wills were not revoked by the last will. It expressly refrained from deciding whether on reading the three wills together it would have to be held that any of the dispositions in the earlier wills was superseded by the last will. It merely held in effect that there were no words in the latter expressly or by necessary implication revoking the earlier wills. This it was quite enough for the court to do as a court of probate. The Subordinate Judge is wrong in holding that the District Judge s judgment, Exhibit V, decided that all the dispositions in the earlier wills would remain in force notwithstanding the will of the 19th December. The plaintiff no doubt would be precluded from contending that the last will revoked the earlier wills except by superseding any one or more of the dispositions contained therein, by the dispositions contained ill the last will. We do not think it desirable to say anything more as to what dispositions in the earlier will are still in force as the case had not been properly tried and even the three wills had not been put in evidence. The respondent s vakil admits that the decision of the lower court cannot be supported with reference to the plaintiff s claim to manage the charities. The decision of the lower court must be reversed and the suit remanded with directions to restore it to the file and dispose of it afresh according to law. The costs of this appeal must abide the result.